1990 JTR(SC) 132
1990 AIR(SC) 1605 ; 1990 AllCJ 619 ; 1990 BBCJ(SC) 106 ; 1990 CriLR 258 ; 1990 2 Crimes(SC) 271 ; 1990 CrLJ 1599 ; 1990 3 JT 79 ; 1990 2 KLT(SN) 22 ; 1990 2 RCR(Cri) 337 ; 1990 1 Scale 455 ; 1990 2 SCC 437 ; 1990 SCC(Cri) 327 ; 1990 1 SCC(Cri) 327 ; 1990 1 SCR 788 ; 1990 KHC 543
SUPREME COURT OF INDIA
A.M. AHMADI AND M. FATHIMA-BEEVI, JJ.
Mosst. Simrikhia, Appellant
Versus
Smt. Dolley Mukherjee alias Smt. Chabbi Mukherjee and another, Respondents
Crl. Appeal No.128 of 1990 (arising out of SLP (Cri) No.2260 of 1989), D/- 2-3-1990.
Act Referred :CRIMINAL PROCEDURE CODE : S.482, S.362
(A) The appeal pertains to the legality of a High Court order under Section 482 of the Cr.P.C. concerning a case involving offences under Sections 452 and 323 of the I.P.C. A Judicial Magistrate First Class transferred the case for enquiry under Section 202 of the Cr.P.C., and subsequent proceedings were challenged by the respondents on the ground of lack of cognizance. The High Court, considering a second application under Section 482, quashed the proceedings, which was contested by the appellant as a review barred under Section 362. The analysis involves the interplay between the inherent powers under Section 482 and the bar against review under Section 362.
(B) Section 482 Cr.P.C. empowers the High Court to prevent abuse of court process and secure ends of justice, but this power is not unfettered and is controlled by principles and precedent. Section 362 expressly bars a court from altering or reviewing a final order, except to correct clerical or arithmetical errors. The inherent jurisdiction under Section 482 cannot be invoked to override the bar of review under Section 362, and the court cannot review its own decision under the guise of inherent power.
Facts of the case:
A case was instituted by private complaint for offences under Sections 452 and 323 I.P.C. The Judicial Magistrate First Class transferred the case for enquiry under Section 202 Cr.P.C. The respondents challenged the issuance of process under Section 482 Cr.P.C., claiming the transfer was illegal as cognizance was not taken. The High Court dismissed the petition, finding no illegality, but later accepted a second application and quashed the proceedings. The appellant contended that the second application was not maintainable as it amounted to a review barred by Section 362.
Findings of Court:
The High Court's quashing of the proceedings was set aside. It was held that there was a definitive finding that cognizance was taken before the transfer, and a reappraisal of facts was not warranted. The second application was an impermissible review of the earlier order, and the High Court erred in entertaining it.
Issues:
Whether a second application under Section 482 Cr.P.C. on the same ground is maintainable after an earlier decision, and whether the High Court can reconsider the same materials and quash the proceedings in exercise of its inherent powers.
Ratio Decidendi:
The inherent powers under Section 482 cannot be used to review a final order barred by Section 362. Where there is no change in circumstances and the decision relies on the same facts, exercising such power to reach a different conclusion constitutes an illegal review. The court must not override the express bar of review under Section 362.
Result:
The appeal is allowed, and the order of the High Court quashing the proceedings is set aside.
(A) The appeal pertains to the legality of a High Court order under Section 482 of the Cr.P.C. concerning a case involving offences under Sections 452 and 323 of the I.P.C. A Judicial Magistrate First Class transferred the case for enquiry under Section 202 of the Cr.P.C., and subsequent proceedings were challenged by the respondents on the ground of lack of cognizance. The High Court, considering a second application under Section 482, quashed the proceedings, which was contested by the appellant as a review barred under Section 362. The analysis involves the interplay between the inherent powers under Section 482 and the bar against review under Section 362.
(B) Section 482 Cr.P.C. empowers the High Court to prevent abuse of court process and secure ends of justice, but this power is not unfettered and is controlled by principles and precedent. Section 362 expressly bars a court from altering or reviewing a final order, except to correct clerical or arithmetical errors. The inherent jurisdiction under Section 482 cannot be invoked to override the bar of review under Section 362, and the court cannot review its own decision under the guise of inherent power.
Facts of the case:
A case was instituted by private complaint for offences under Sections 452 and 323 I.P.C. The Judicial Magistrate First Class transferred the case for enquiry under Section 202 Cr.P.C. The respondents challenged the issuance of process under Section 482 Cr.P.C., claiming the transfer was illegal as cognizance was not taken. The High Court dismissed the petition, finding no illegality, but later accepted a second application and quashed the proceedings. The appellant contended that the second application was not maintainable as it amounted to a review barred by Section 362.
Findings of Court:
The High Court's quashing of the proceedings was set aside. It was held that there was a definitive finding that cognizance was taken before the transfer, and a reappraisal of facts was not warranted. The second application was an impermissible review of the earlier order, and the High Court erred in entertaining it.
Issues:
Whether a second application under Section 482 Cr.P.C. on the same ground is maintainable after an earlier decision, and whether the High Court can reconsider the same materials and quash the proceedings in exercise of its inherent powers.
Ratio Decidendi:
The inherent powers under Section 482 cannot be used to review a final order barred by Section 362. Where there is no change in circumstances and the decision relies on the same facts, exercising such power to reach a different conclusion constitutes an illegal review. The court must not override the express bar of review under Section 362.
Result:
The appeal is allowed, and the order of the High Court quashing the proceedings is set aside.
A.D.SIKH, A.SHARAN, D.GOVERDHAN CHARY, R.K.GARG, RANJAN MUKHERJEE
Judgment
FATHIMA BEEVI, J. :- Special leave granted.
The legality of the order of the High Court dated 19-8-1989 passed on an application made under Section 482, Cr.P.C. is challenged in this appeal. In a case instituted on a private complaint by the appellant for offences under Sections 452 and 323, I.P.C., the Judicial Magistate First Class, Patna, in exercise of power under Section 192(2), Cr.P.C. transferred the case for enquiry under Section 202 of the Cade. The Court of the Second Class Magistrate, after examining witnesses, by order dated 22-3-1985 issued process to the two accused the respondents herein. The order of the Magistrate issuing process was challenged by the respondents under Section 482 before the High Court. The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cognizance of the offence and the subsequent proceedings were, therefore, illegal. the High Court, by its order dated 20-8-88, dismissed the petition. It was found that there was no such illegality. The respondents again made Crl. Misc. Petn. 2314/ 89 under Section 482, Cr.P.C. before the High Court alleging, inter alia, that the record of the proceedings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer. The learned single Judge accepted the case of the respondents and quashed the proceedings by the impugned order.
2. The learned counsel for the appellant contended before us that the second application under Section 482 Cr.P.C. was not entertainable, the exercise of power under Section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of Section 362 of the Cri .P.C. and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course. We find considerable force in the contention of the learned counsel. The inherent power under, Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the ease, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362.
3. In the present case, there had been a definite finding that the complaint was taken cognisance of by the Magistrate before he transferred the proceedings under Section 192(2) for enquiry under Section 202, Cr. P.C. This finding has been arrived at after perusal of the record of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate. A reappraisal of the facts on record to determine whether such cognizance had been taken of in a subsequent proceeding is not, therefore, warranted. The only ground on which relief was claimed is the alleged irregularity in the transfer of the proceedings. It was not open to the parties to reagitate the question by a fresh application nor was the court empowered under Section 482 to reconsider the matter.
4. Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a cases shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.
5. In Superintendent & Remembrances of Legal Affairs v. Mohan Singh, (1975) 3 SCC 706 this Court held that Section 561A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must therefore exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. In that case the facts and circumstances at the time of the subsequent application were clearly different from what they were at the time of the earlier application. The question as to the scope and ambit of the inherent power of the High Court vis-a-vis an earlier order made by it was, therefore, not concluded by this decision.
6. The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal, (1981) 1 SCC 500 that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.
7. We allow the appeal and set aside the order of the High Court.
Appeal allowed.
For Citation : AIR 1990 SC 1605